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ELCDismissed· [2024] KEELC 710 (KLR)

Gichina (Suing as the Administrator of the Estate of the Late Joseph Gichina Muhoro) v County Government of West Pokot (Environment & Land Case 125 of 2016) [2024] KEELC 710 (KLR)

Environment and Land Court
12 February 2024
2,212 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Kitale ruled that a County Attorney who assists existing lawyers on record is not a 'change of advocate', so the opposing party's strike-out attempt failed.

What this practically means

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Executive summary

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By an oral application, the Plaintiff sought to strike out the Notice of Appointment dated 20/12/2023 filed by Philip Magal, County Solicitor of West Pokot County, together with the Replying Affidavit of Jonathan Siwanyang sworn on 05/02/2024, on the ground that the Office of the County Attorney came on record after judgment without filing a consent or an application as required by Order 9 Rule 9 of the Civil Procedure Rules, 2010. The Plaintiff relied on the fact that judgment had been entered on 22/09/2022 while M/s Kidiavai & Company Advocates was on record for the Defendant. The Respondent, through the County Solicitor, relied on Section 8 of the Office of the County Attorney Act, contending that the County Attorney may appear at any stage of proceedings, and argued that the Office came on record to act alongside, not to replace, Kidiavai & Company Advocates, whose associate confirmed the firm had never ceased acting. The court held that Order 9 Rule 9 applies only where, after judgment, there is a change of advocate or a party elects to act in person; an advocate who merely assists existing counsel is not a change of advocate, and the Rule was not enacted to hinder access to justice. The Notice of Appointment expressly stated the County Attorney would act 'alongside' the firm on record. The application was dismissed with costs to the Respondent, the Replying Affidavit was held properly on record, and the matter was set down for hearing subject to directions of 07/02/2024 concerning Safaricom call extracts relevant to a consent order of 24/01/2024.

Key legal issues

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01

Whether Order 9 Rule 9 CPR applies where the County Attorney comes on record post-judgment to act alongside existing counsel

Holding

The Rule does not apply; there was no change of advocate, so no consent or application to come on record was required

Reasoning

The court construed Order 9 Rule 9 as targeting a change of advocate or election to act in person after judgment, aimed at protecting the outgoing advocate's fees. Where counsel is assisted rather than replaced, the mischief is absent and the Rule is irrelevant. The Notice of Appointment expressly stated the County Attorney would act 'alongside' M/s Kidiavai & Company Advocates, and that firm confirmed it had never ceased acting.

p. 3
02

Scope of Section 8 of the Office of the County Attorney Act

Holding

The County Attorney may appear at any stage of proceedings, but subject to any legal requirement such as Order 9 Rule 9 where it applies

Reasoning

Section 8 of the Office of the County Attorney Act confers a right of audience at any stage, including execution, unless excluded by law. The court held that a holistic reading of Order 9 Rule 9 would bar the County Attorney from coming on record post-judgment where counsel had previously acted, unless the Rule was complied with - but on the facts there was no taking over of representation, so no bar arose.

p. 4

Legal principles established

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  • Order 9 Rule 9 CPR applies only where there is a change of advocate or a party opts to act in person after judgment; an advocate coming on record to act alongside existing counsel is not a change of advocate
  • A party has an unfettered right to choose and instruct an advocate of its own choice at any stage of proceedings

Court orders

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  1. 1.The oral application by the Plaintiff to strike out the Notice of Appointment dated 20/12/2023 and the Replying Affidavit sworn on 05/02/2024 is dismissed
  2. 2.The Replying Affidavit sworn on 05/02/2024 is found to be properly on record
  3. 3.Costs of the application to the Respondent
  4. 4.The matter to be heard subject to the directions given on 07/02/2024 regarding availing from Safaricom Limited the extracts of mobile conversations between learned counsel for determining whether counsel instructed another to hold brief to set aside the orders of 24/01/2024

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 9 Rule 5
  • Civil Procedure Rules, 2010Order 9 Rule 9
  • Office of the County Attorney ActSection 8

Cases cited (3)

  • Bridges Exploration Ltd v Stephen Karanja
    [2019] eKLR
  • James Ndonyu Njogu v Muriuki Macharia
    [2020] eKLR
  • Stephen Mwangi Kimote v Murata Sacco Society
    [2018] eKLR
Jurisdiction invoked
Inherent jurisdiction of the Environment and Land Court over a matter in which judgment was entered on 22/09/2022; application founded on Order 9 Rule 9 of the Civil Procedure Rules, 2010

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Gichina (Suing as the Administrator of the Estate of the Late Joseph Gichina Muhoro) v County Government of West Pokot (Environment & Land Case 125 of 2016) [2024] KEELC 710 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/710/eng@2024-02-12

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.